Supreme Court Justice Clarence Thomas told a group of lawyers in Atlanta last week that judges should spend more time listening and less time talking. “I believe quite strongly we, as judges, need to take the approach we’re here to solve difficult problems, not debate with lawyers,” Justice Thomas told the lawyers. Justice Thomas is the least likely to speak up during oral arguments of any Supreme Court justice.
I appreciate the sentiment. The “failure to really listen” disease is one from which we all suffer, to varying degrees. But if listening to lawyers is important in oral arguments as Judge Thomas indicates by this comment, than how can asking questions of lawyers not be an important part of the process? No lawyer is about to include in their brief and/or oral argument the answer in advance of every good question the case generates. This give-and-take with lawyers and judges is incredibly useful.
A few years ago, Justice Thomas compared the job of a judge to that of a surgeon.
Suppose you’re undergoing something very serious like surgery and the doctors started a practice of conducting seminars while in the operating room, debating each other about certain procedures and whether or not this procedure is this way or that way. You really didn’t go in there to have a debate about gallbladder surgery. You actually went in to have a procedure done. We are judges. This is the last court in a long line in our system. We are there to decide cases, not to engage in seminar discussions.
I agree. I do not want my surgeon having a debate during my operation. But this is a false comparison. On the operating room table, time is of the essence. But I want a debate about my surgery – what could happen, what are the possible complications and what are the best ways to resolve those complications – before my surgery. This is why doctors roundtable medical issues.
I do not agree with Justice Thomas on most of the issues of our day. But I believe he is a smart man who should join the conversation.